I\u2019m not a lawyer, and I don\u2019t play one on TV (to paraphrase a commercial from several years ago).\u00a0 But it occurs to me that through legal maneuvering, President Barack Obama and his inner circle may have the last laugh on the health care bill, all for the benefit of the American people and pleasure of political progressives.<\/p>\n

On Monday, December 13, federal district judge Henry Hudson, a George W. Bush appointee, ruled in favor of Virginia Attorney-General Ken Cuccinelli\u2019s contention that the individual mandate to buy health insurance, as outlined in the Patient Protection and Affordable Health Care Act of 2010, was unconstitutional.\u00a0 His reasoning was that it \u201cexceeds the boundaries of congressional power.\u201d<\/p>\n

Judge Hudson ruled that the mandate was an unconstitutional expansion of the Commerce Clause of the Constitution.\u00a0 The commerce clause in Article I, Section 8, Clause 3 of the Constitution states that the United States Congress shall have power \u201cto regulate commerce with foreign nations, and among the several Sates, and with Indian Tribes.\u201d<\/p>\n

During the presidential campaign of 2008, candidate Barack Obama stated several times that if the country was creating a health care system from scratch, the best system would be a single payer system.\u00a0 The more politically sanitized term for this approach is \u201cMedicare for all.\u201d\u00a0 In any event, it is similar to what exists in Canada and every industrialized country in the world save for the United States.<\/p>\n

Why did only one candidate (Ohio Congressman Dennis Kucinich) embrace Medicare for all as the most desirable approach, even with America\u2019s history of a patchwork of coverage and non-coverage involving the private and public sectors in a fashion that looked like a Rube Goldberg invention?<\/p>\n

One need look no further than a mile from the Capitol; K Street, NW where the lobbyists for the health insurance companies \u201cdo business.\u201d\u00a0 What a bonanza the current health care bill is for them.\u00a0 Name one other industry that has ever had a government policy deliver thirty to forty million new customers to their door step as the health care mandate does.<\/p>\n

There have been times when I feel as if Barack Obama has fooled me, much to my disappointment.\u00a0 Now I\u2019m hoping that he\u2019s fooled me again.\u00a0 You see he was a professor of constitutional law at the University of Chicago.\u00a0 One might say with confidence that he knows quite a bit more about the constitution than, say, Delaware GOP Senatorial candidate Christine O\u2019Donnell who was a self-proclaimed constitutional scholar because she once took a seven day workshop from something called the Claremont Institute.\u00a0 Somehow I think that Barack Obama learned a little bit more about the constitution from three years at Harvard Law School, studying for the Illinois bar, and becoming a professor at the University of Chicago Law School.<\/p>\n

So the commerce clause is clearly not news to him.\u00a0 Now, back to Ken Cuccinelli, Virginia\u2019s Attorney-General.\u00a0 He argued against the mandate because he saw it as the weakest link in the bill.\u00a0 His reasoning was essentially this:\u00a0 While the commerce clause gives the federal government the right to regulate commerce between different states, it does not give the federal government the power to mandate an individual to engage<\/span> in interstate commerce.\u00a0 The federal government could not tell Americans that at least once in their lives they need to take vacations in a state other than their own.\u00a0 Similarly, it cannot tell anyone that they must purchase a product such as health insurance, even though almost every component of health care is delivered to us through interstate commerce.\u00a0 Just think of pharmaceuticals; is any medicine entirely manufactured and distributed within a single state?<\/p>\n

So perhaps, President Obama had a pretty good feeling that the 2010 act had at least one clause of dubious constitutionality.\u00a0 At the same time he supported it to give the illusion, if not the reality, of bi-partisan support.<\/p>\n

What most everyone agrees upon is that there are many components in the 2010 act that Americans either liked prior to the bill\u2019s passage or will come to like as they live with it.\u00a0 These include banning insurance companies from refusing to pay for children\u2019s illnesses that are the result of a pre-existing condition.\u00a0 This component will go into effect for adults in 2014.\u00a0 The bill also allows children to stay on their parents\u2019 policy through age twenty-six.\u00a0 It removes lifetime caps on what insurance companies can pay to cover an individual\u2019s medical needs.<\/p>\n

Back to the legal side.\u00a0 President Obama wasn\u2019t born yesterday, and he can do a pretty good job of reading the John Roberts Supreme Court.\u00a0 Eventually, at least one of the challenges to the mandate is going to make its way to the Supremes.\u00a0 If they uphold the mandate provision, then we\u2019re no worse off than we are now, which is much better than we were prior to passage of the act.\u00a0 If the Court rules the mandate to be unconstitutional, that will not take away the favorable opinions that most Americans have about many other components of the act.\u00a0 So what option is left to preserve those components if the mandate is found to be unconstitutional?\u00a0 We received a hint when Cuccinelli was recently interviewed on POTUS (Politics of the United States) XM-Sirius radio.\u00a0 Cuccinelli was asked a simple question.\u00a0 If the program was funded by raising the payroll tax (Social Security and Medicare), would it be constitutional?\u00a0 Cuccinelli didn\u2019t hesitate.\u00a0 He immediately said \u2018yes.\u2019\u00a0 If that is what would happen, you could call it by another name.\u00a0 That name would be \u201cMedicare for All.\u201d<\/p>\n

So perhaps President Obama is crazy like a fox and could see that several years down the road we might just have a \u201cMedicare-for-All\u201d-type system.\u00a0 That would be brilliant.<\/p>\n

Of course, nothing comes easy.\u00a0 Funding health care through an addition to the payroll tax would be difficult to pass through Congress, especially the one that is going to have a Republican majority in the House for at least the next two years.\u00a0 Even with a Democratic majority, \u201cno-brainer\u201d issues like extending unemployment insurance or providing benefits to nine-eleven first responders do not come easily.\u00a0 But unlike unemployment benefits or aid to first-responders, health care reform brings benefits to all Americans.\u00a0 With a little more cleverness and some help from his friends, he may just pull of a remarkable act of political adroitness.\u00a0 Let\u2019s hope so.<\/p>\n

NOTE:<\/strong> Robert Reich wrote a similar piece on January 6, 2011.<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

I\u2019m not a lawyer, and I don\u2019t play one on TV (to paraphrase a commercial from several years ago).\u00a0 But it occurs to me<\/p>\n","protected":false},"author":2,"featured_media":6460,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"nf_dc_page":"","_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[113,10,16],"tags":[805,807,806],"yoast_head":"\n